An injunction in its simplest form is a Court order directing a person or entity to do a specific thing (Mandatory Injunction) or, more commonly, to not do a specific thing (Prohibitory Injunction). Whilst an injunction in itself can amount to final relief in a matter, it is generally sought on an interlocutory basis (Interlocutory Injunction) which is where a temporary remedy is sought to maintain the status quo until the larger matter can be heard. If a temporary order is granted it will generally become permanent if the applicant is successful in the larger claim.
Interlocutory Injunctions
It was affirmed in Australian Broadcasting Corporation v O’Neill [2006] HCA 46 that to be granted an injunction on an interlocutory basis, the applicant is required to establish:
- there is a serious question to be tried;
- there is a matter of urgency;
- damages will not adequately repair the harm; and
- the balance of convenience favours granting an injunction.
Prohibitory Injunctions
Prohibitory Injunctions are most commonly sought on an interlocutory basis as they are sought to limit or cease further damage occurring. Examples of Prohibitory Injunctions include:
- preventing a former employee working for a competitor in breach of a restraint of trade clause;
- preventing the sale of an asset where ownership is in dispute;
- preventing the seller of a business opening up a competitor pursuant to the terms of a business sale agreement;
- preventing the sale of a product where there is a trademark or patent infringement allegations;
- preventing the demolition of a heritage listed site; and
- preventing publication of confidential information.
Mandatory Injunctions
Examples of Mandatory Injunctions include:
- to force a party to execute documents to give effect to a transaction (such as a transfer of land or release of mortgage);
- to perform an obligation pursuant to a contract; and
- to deliver up goods.
Ex Parte Injunctions
There are circumstances which can arise whereby a party may seek an interlocutory injunction without notifying the other party, generally in the case of urgency. This is referred to as an ex parte injunction or an order without notice. Rule 259 of the Uniform Civil Procedure Rules 1999 (Qld) states:
‘An application for a part 2 order should be served, but if the Court is satisfied there is adequate reason for doing so, the Court may grant the order without notice to the other party.’
It is not uncommon for freezing orders and, particularly, search orders to be dealt with on an ex parte basis. When applying without notice to the other side, the applicant has a duty of disclosure to the Court.
In South Downs Packers, Re South Downs Packers Pty Ltd [1984] 2 QDR 559, Connolly J (with whom Campbell CJ agreed) stated at 565-6, quoting Isaacs J in Thomas A Edison Ltd v Bullock (1912) 15 CLR 679, 681-2:
‘It is the duty of a party asking for an injunction or indeed for any order ex parte to bring under the notice of the Court all facts material to the determination of his right to that relief…’Uberrima fides is required, and the party inducing the Court to act in the absence of the other party, fails in his obligation unless he supplies the place of the absent party to the extent of bringing forward all the material facts which that party would presumably have brought forward in his defence to that application. Unless that is done, the implied condition upon which the Court acts in forming its judgment is unfulfilled and the order so obtained must almost invariably fall…’
This was more recently applied in Heartwood Architectural Timber & Joinery Pty Ltd v Redchip Lawyers [2009] QSC 195 whereby Applegarth J discussed the duty of disclosure on an ex parte application when considering an application for costs against the solicitor representing the applicant. Applegarth J (at paragraph [32]) said:
‘… An ex parte order that is obtained in breach of the duty of disclosure is liable to be discharged without a hearing on the merits. The respondent is prima facie entitled to its discharge. An applicant can apply for a new order. In that regard, some Courts have adopted a less sever approach than others…..
…..[A]n aggrieved party which applies to discharge an ex parte injunction that was obtained without full disclosure is prima facie entitled to have the injunction discharged even if the Court takes the view that the order would probably have been made even if there had been full disclosure. The merits of the applicant’s case for a freezing order may be relevant to the discretion to grant a new order.’
Failure by a legal practitioner to comply with their duty of disclosure to the Court can result in ramifications to the legal practitioner themselves. In Surefire Holdings Pty Ltd v Oxley Sportsdome Pty Ltd [2001] QSC 085 the applicant had obtained an interim injunction on an ex parte application to the Court. On the return date the Court dissolved the injunction because of the applicant’s failure to disclose a number of material facts of which it knew. Atkinson J found that the solicitor for the applicant, who was also a director of the applicant, had failed to comply with the duty of candour and fairness expected of a legal practitioner and that this failure was a serious matter that warranted more investigation. The papers were referred to the Attorney-General and the Queensland Law Society.
What sort of conduct can be restrained by an injunction?
On its face almost any sort of conduct can be subject of an injunction. The following examples provide some guidance:
- Curro v Beyond Productions Pty Ltd (1993) 30 NSWLR 337 – the employer (a television production company) was entitled to an injunction to prevent the employee (a television news reporter) from breaching the restraint of trade clause in her contract and signing with a competitor of the employer.
- Exxon Corporation v Exxon Insurance Consultants International Ltd [1981] 2 All ER 495 – an oil company sought an injunction based on breach of copyright to prevent an unrelated company from adopting the word “Exxon” in its name but failed as the Court held that the name was not sufficiently substantial for copyright to subsist.
- Motorcycle Aftermarket Spares Pty Ltd v Tamworth Cycle Tune Pty Ltd [2014] FCA 1433 – temporary and permanent injunctions were obtained by Dundas Lawyers to restrain the respondent from repeated breaches of copyright. Leave was sought and obtained to file the injunction on eBay Australia.
- SAI Global Property Division Pty Ltd v Johnstone [2016] FCA 1333 – an urgent injunction was obtained to stop the release of a database uploaded to a flash drive by an employee.
- State of Victoria & Anor v Nine Network [2007] VSC 431 – an injunction was sought to prevent the publication of confidential information.
Take away
If you are considering an injunction the core question to ask is whether there is a case for irreparable harm to a person or a company. If compensation is not sufficient to remedy the harm, then an interlocutory injunction may be appropriate. If seeking an ex parte injunction you must ensure all relevant material is disclosed to the Court is in favour of the application or not.
Further references
Cases
Australian Broadcasting Corporation v O’Neill [2006] HCA 46
Curro v Beyond Productions Pty Ltd (1993) 30 NSWLR 337
Exxon Corporation v Exxon Insurance Consultants International Ltd [1981] 2 All ER 495
Heartwood Architectural Timber & Joinery Pty Ltd v Redchip Lawyers [2009] 2 Qd R 499; [2009] QSC 195
Motorcycle Aftermarket Spares Pty Ltd v Tamworth Cycle Tune Pty Ltd [2014] FCA 1433
SAI Global Property Division Pty Ltd v Johnstone [2016] FCA 1333
South Downs Packers, Re South Downs Packers Pty Ltd [1984] 2 QDR 559
State of Victoria & Anor v Nine Network [2007] VSC 431
Surefire Holdings Pty Ltd v Oxley Sportsdrome Pty Ltd [2001] QSC 085
Thomas A Edison Ltd v Bullock (1912) 15 CLR 679, 681-2
Legislation
Uniform Civil Procedure Rules 1999 (Qld)
Related articles by Dundas Lawyers
Anton Piller orders – preventing evidence destruction
Using Anton Piller orders and employee theft
Further information
If you need assistance with applying for an injunction, please telephone me for an obligation free and confidential discussion.
Matthew Robinson LL.B.,GDLP.,MQLS
Senior Associate
Telephone: (07) 3221 0013
e: mrobinson@dundaslawyers.com.au
Disclaimer
This article is not legal advice. It is general comment only. You are instructed not to rely on the commentary unless you have consulted one of our Lawyers to ascertain how the law applies to your particular circumstances.
B.Bus.,MBA.,LL.B.
